This bill creates a requirement for hospitals, ambulatory surgical centers, or any other places where surgical procedures are performed — referred to in the bill as surgical facilities — to offer surgical patients the option to have their surgical procedures and discharge instructions videotaped. Surgical facilities must provide notice of the option and all related procedures and conditions set forth in the bill. For purposes of this bill, a surgical procedure is one for which a patient is given a general anesthetic. If a patient makes a request to have a surgical procedure or discharge instructions recorded, this bill requires that the surgical facility, or its designee, record the surgical procedure or discharge instructions with both audio and color video. When recording of a surgical procedure is requested, the facility must record with color video any entryway to or exit from the surgical suite during the time reserved for the surgery of the requesting patient, including preparation time. If the surgical patient is incapacitated, the surgical facility is required to provide a person authorized by the patient with notice of the option for video recording, and that person may request that a recording be made. Similarly, if the surgical patient is a minor, the surgical facility must notify a parent, guardian, or legal custodian of the option for video recording and allow that person to make a request for a recording on behalf of the minor. The bill also allows a physician or certain other individual who holds a valid license or other credential that allows him or her to perform surgical procedures for which a patient is under general anesthesia (surgical practitioner) and who is scheduled to perform a surgical patient's surgical procedure to request that a recording be made. A health care provider who provides the patient with discharge instructions may also request that those instructions, as provided, be recorded. A surgical facility must comply with these requests so long as certain conditions are met, including that the surgical patient or person authorized by the patient does not object. Under the bill, in certain limited emergency circumstances, surgical facilities are not required to provide the option of recording.

In return for exercising the option to have a surgical procedure recorded, under the bill, the surgical patient or, if applicable, parent, guardian, legal custodian, or person authorized by the patient may disclose the recording only to limited authorized individuals unless confidentiality is waived by the health care provider or surgical practitioner that is a subject of the video recording. Video recordings of surgical procedures created under this bill are otherwise treated as patient health care records and are subject to the same protections as other medical records including all criminal and civil penalties for improper disclosure or destruction. The bill specifies that, once a recording is complete, the surgical facility or its designee must preserve the recording as part of the patient's health care record but delete copies of the recording from the recording device and elsewhere. Under the bill, a surgical facility may charge a surcharge of up to $25 for each recording of a surgical procedure or discharge instructions. Upon request, the surgical facility must provide to the patient, person authorized by the patient, or parent, guardian, or legal custodian of the patient one copy of the recording without an additional charge. Recordings under this bill are admissible as evidence in any civil or criminal action or proceeding related to any alleged act or omission depicted in the recording.

Under this bill, a surgical patient may complete an advance request for recording, which permits an individual who is of sound mind and over the age of 18 to request video recording for future surgical procedures. The individual may complete an advance request for a single specific surgical procedure or set of discharge instructions, or for all future surgical procedures and discharge instructions to which this bill would apply. An advance request must be completed voluntarily, and must be in writing and signed and dated in the presence of a witness over the age of 18. The advance request may be revoked at any time.

This bill provides that a health care provider who knowingly refuses to comply with a patient request for recording is subject to a forfeiture of up to $25,000 for each violation. A surgical facility that fails to provide a required notice of the option for recording, including information regarding the procedures, fees, conditions, the surgical practitioner's request option, and the advance request option, is subject to a forfeiture of up to $25,000 for each violation. Whoever intentionally conceals, cancels, defaces, obliterates, damages, or destroys an advance request for recording without consent may be subject to a forfeiture of up to $25,000 for each violation. Finally, a patient, parent, guardian, legal custodian, or person authorized by a patient who knowingly violates the confidentiality provision and discloses a video to an unauthorized individual is subject to a forfeiture of up to $25,000 for each violation.

Under this bill, the Department of Health Services is required to promulgate rules establishing standards relating to the recording equipment and the recording. The department may promulgate additional rules as necessary to implement and administer the provisions of the bill.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB863,3,3250.373Video recording of surgical procedures.(1)Definitions. In this 3section:

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(a) “Discharge instructions” means care instructions provided to a patient at 5or near the time of a patient's exit or release from a surgical facility after a surgical 6procedure.

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(b) “General anesthesia" means a temporary status commonly produced by the 8administration of certain intravenous drugs and inhaled gases that cause a patient 9to be unconscious and unable to feel pain during a medical procedure.

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(c) “Health care provider" means a person or entity described under s. 146.81 11(1) (a) to (p) and includes any surgical facility.

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(d) “Incapacitated" means unable to receive and evaluate information 13effectively or to communicate decisions to such an extent that an individual lacks the 14capacity to manage his or her health care decisions.

AB863,4,31(f) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory 2surgical center, as defined in 42 CFR 416.2, or any other place where a surgical 3procedure is performed.

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(g) “Surgical patient" means a patient who is scheduled to undergo a surgical 5procedure.

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(h) “Surgical practitioner" means a physician, surgeon, or osteopath under s. 7990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other 8individual who holds a valid license or other credential that allows him or her to 9perform a surgical procedure.

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(i) “Surgical procedure" means a surgical procedure for which a patient is under 11general anesthesia.

AB863,4,1812(2)Option for recording. (a) A surgical facility shall provide a surgical 13patient the option to have the surgical facility or the surgical facility's designee make 14a color video recording, including both audio and video and display of the time and 15date, of the patient's surgical procedure. A surgical facility shall also provide a 16surgical patient the option to have his or her discharge instructions, as given by the 17patient's doctor or other health care provider, videotaped as described under this 18paragraph.

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(b) 1. A surgical facility shall notify a surgical patient or, if the surgical patient 20is incapacitated, a person authorized by the patient under s. 146.81 (5) of the option 21to have a recording made under par. (a) and of the procedures, fees, conditions, the 22surgical practitioner's request option, and the advance request option.

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2. If the surgical patient is a minor child, the surgical facility shall notify the 24minor child's parent, guardian, or legal custodian of the option to have a recording 1made under par. (a) and of the procedures, fees, conditions, the surgical practitioner's 2request option, and the advance request option.

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(c) A surgical practitioner who is scheduled to participate in a surgical patient's 4surgical procedure may request that the procedure be video recorded under the 5procedures described in this subsection. The surgical facility shall comply with the 6surgical practitioner's request if all of the following are true:

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1. The requesting surgical practitioner has informed the patient or, if 8applicable, a parent, guardian, legal custodian, or a person authorized by the patient, 9of the surgical practitioner's request for video recording and the reason the surgical 10practitioner has requested that recording.

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2. The surgical patient, or if applicable, the parent, guardian, legal custodian, 12or person authorized by the patient under s. 146.81 (5), does not object to the video 13recording.

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(d) A patient's doctor or other health care provider who will administer a 15patient's discharge instructions may request that the patient's discharge 16instructions, as given by the health care provider, be video recorded under the 17procedures described in this subsection. The surgical facility shall comply with the 18health care provider's request if all of the following are true:

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1. The requesting health care provider has informed the patient or, if 20applicable, a parent, guardian, legal custodian, or a person authorized by the patient, 21of the health care provider's request for video recording and the reason the health 22care provider has requested that recording.

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2. The surgical patient, or if applicable, the parent, guardian, legal custodian, 24or person authorized by the patient under s. 146.81 (5), does not object to the video 25recording.

AB863,6,111(e) A surgical patient, or if applicable, parent, guardian, legal custodian, or 2person authorized by the patient under s. 146.81 (5), may not disclose, unless the 3surgical practitioner or other health care provider that is a subject of the video 4recording waives confidentiality, the content of a video recording created under this 5section except to health care providers providing care to the surgical patient, to 6immediate family members or a person authorized by the patient under s. 146.81 (5), 7or to an attorney or an attorney's staff for the purpose of obtaining legal advice. If 8legal action is taken, the surgical patient may disclose the video recording to 9additional individuals if necessary for the case, but it shall be filed under seal if 10permitted. In all other respects, recordings under this section shall be treated as 11patient health care records.

AB863,6,1912(3) Entry and exit recording. If a surgical patient requests to have his or her 13surgical procedure recorded under sub. (2) (a), the surgical facility or its designee 14shall also make a color video recording, including display of the time and date, of any 15entryway to or exit from the surgical suite in which the surgical procedure being 16recorded is taking place, during the time from which the surgical suite is being 17prepared for the surgery of the patient being recorded until that surgical patient 18exits the suite. A surgical facility is not required to record audio in making the 19recording under this subsection.

AB863,6,2420(4)Equipment and technical assistance. A surgical facility shall have 21available appropriate video recording equipment and technical assistance as 22determined by the department in rules promulgated under sub. (8) to comply with 23a surgical patient request for a recording of his or her surgical procedure or discharge 24instructions.

AB863,7,31(5)Incapacity. If a surgical patient is incapacitated, a person authorized by 2the patient under s. 146.81 (5) may request that a recording be made under sub. (2) 3(a).

AB863,7,64(6) Minors. If a surgical patient is a minor child, a parent, guardian, or legal 5custodian may request that a recording be made of the minor child's surgical 6procedure or discharge instructions under sub. (2) (a).

AB863,7,107(7)Exception for emergencies. (a) Notwithstanding sub. (2), a surgical 8facility is not required to provide the option of a video recording under this section 9if the surgical practitioner determines in the exercise of his or her professional 10judgment that either of the following is true:

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2. Other circumstances exist such that video recording would cause a delay that 13would create a serious risk of substantial and irreversible impairment of one or more 14of the surgical patient's bodily functions.

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(b) The health care provider shall inform the surgical patient, or the parent, 16guardian, or legal custodian or person authorized by the patient under s. 146.81 (5), 17if applicable, of the medical indications supporting the surgical practitioner's 18reasonable medical judgment that either of the emergency conditions under par. (a) 19exists.

AB863,7,2520(8)Rules. (a) The department shall promulgate rules establishing standards 21for video recording of surgical procedures, video recording of discharge instructions, 22and the use of video recording equipment in the surgery and discharge settings to 23ensure such recordings are professional and of sufficient quality to accurately 24portray what takes place during a surgical procedure or when discharge instructions 25are given.

AB863,8,21(b) The department may promulgate rules, as necessary, to implement and 2administer this section, including any of the following:

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1. Establishing criteria and procedures for providing notice and the option for 4video recording under sub. (2).